9 F. 474 -

9 F1d 474

Case Text

474

FEDERAL REPORTER.

hatches opposite the pile corresponding to that left on board, and then unloaded the balance. This mode of unloading was evidently adopted without regard to the interests or rights of the vessel, and solely because it suited the purpose of the consignees. The vessel had the right, under the law and her charter, to quick dispatch, and this was not given her. My conclusion, then, is that the consignees had the right to take 24hours, excluding Sunday, in which to furnish a dock aud begin unloading, and as the Cook arrived Saturday morning, they were not obliged to begin unloading until Monday morning, so there is no ground for complaint against the respondents for not begiiming to unload earlier than Monday morning. But I further find from the proof ihatthere was an unreasonable delay of two days after the unloading commenced, for which the libellants should be compensated; and, from the proof in the case, I fix the rate of compensation art $60 a day. 'rhere will, therefore, be a decree in favor of the libellantsfor $120, and the costs of the case.

'I'HE WALTER M. FLEMING.

(District Court, E. D. New York.

1.

EQUITy-DELAY.

September 28, 1881.)

Delay defeats equity. So held, where one slept on his rights for seven years, and then invoked the aid of the court against a purchaser for value who had been in possession of the property for nearly that length of time with the knowledge of the libellant, and without objection on his part.

L. R. Stegman and E. G. Davis, for libellant. Benedict, Taft <t Benedict, for respondent. BENEDIC'l", D. J. The libel in this case, by reason of its curious and uncertain averments, presents questions that I pass over to determine the question raised by the evidence; namely, whether, upon the facts proved, a case is made calling for the interposition of this court to take the possession of the canal-boat Walter M. Fleming from Cornelius Vanolinda, who now has the same, and give it to the libellant. The facts are largely in dispute, according to the libellant's testimony. He being the owner and in possession of this boat in July, 1874, at Rochester, New York, made an agt'eement with one Charles Vanolinda to sell the boat for a certain sum-$150 down, and the b:tlance within 30 days. The $150 was then paid by the buyer, and

THE WALTER M. FLEMING.

the boat was delivered to him, since which the libellant has seen nothing of the boat or the buyer until the commencement of this suit, and has received no part of the purchase money except the $150. What the· full consideration was agreed to be libellant does not recollect, but he thinks it was over $500, and he thinkstha,tno bill of sale of the boat was ever given by him. Nothing of all this appears in the libel, which contains no allusion to either Charles or Cornelius M. Vanolinda, and makes one Wright the party defendant, with whom it is evident the libellant has no can· , troversy. But assuming the libellant's recollection to be accurate, which evidently it is not in all respects, and assuming that the state of facts sought to be madE; by the libellant'lil testimony is admissible under his libel, his action cannot be maintained; for, according to the libellant's testimony, at the expiration of 30 days from his delivery of the boat to Charles Vanolinda, in July, 1874, he had the right to resume possession of the boat, and from that time to this he has made no attempt to exercise this right. The fact conceded in this case, that no bill of sale of the boat was given at the time of the delivery of the boat to Charles Vanolinda, is deprived of much of its ordinary significance as bearing upon the question whetber the title was Intended to be transferred by the circumstance that the libellant has no bill of sale. The only bill of sale proved IS from William D. Callister to the libellant and one Mr. William H. Crennel. The libellant, doubtless, became possessed of Crennel's interest in the boat, but he has no bill of sale from Crennel. Assuming, however, that the omission to deliver a bill of sale to Charles Vanolinda, under these circumstances, be sufficient to compel the conclusion that there was no intention to part with the title to this boat at the time of the bargain with Charles Vanolinda, still it must in equity be held that any right to reclaim possession of the boat, upon failure of the buyer to perform his agreement, has been waived by this long and unexcused delay of some seven years. And this, certainly, when, as the claimant has proved, the boat was during this long period running upon the Erie canal, and both Charles Vanolinda and the present possessor, Cornelius Vanolinda, had been seen by the libellant on more than one occasion without any demand of the possession ever being made, and when no obstacle existed to prevent the libellltnt from resuming the possession at any time. It was the libellant's duty, if he intended to reclaim possesion of the boat, to do so within a reasonable time after the default; and he cannot be permitted to wait seven years, and then without demand apply to have the court put him in

4:76

FEDERAL REPORTER.

possession as against one who, according to testimony that has not been disputed, bought the boat in 1875, paying full value therefor, and since then has been in peaceful possession of the boat, with the knowledge of the libellant and without objection on his part. The libel is dismis8ed, with costs.

THE OLD NATCHEZ.

lDistlJ'ict Oourt, S. D. Mississippi.

1.

DISMANTLED WATER-CRAFT-SALVAGE.

1881.)

Salvage services can be rendered to a dismantled steam-boat, moored on a Dilvigable river, and undergoing alterations and repairs for the purpose of being fitted for use as a wharf-boat.

In Admiralty. Albert M. Lea, for libellant. W. B. Pittman, for claimant. HILL, D. J. The questions for decision arise upon the libel, swer, and agreed state of facts,.from which it appearl:lThat the vessel arrested was formerly used in navigating the Mississippi river; that she became unfit for that service and was dismantled of all her machinery and other appurtenances necessary for such use, leaVing the hull, cabin, and outer construction; that she was purchased in this condition at Cincinnati, and by her owners removed to it landing near the city of Vicksburgh, for the purpose of being repaired and fitted for use as a wharf-boat for shippers and passengers upon and across the Mississippi river at Vicksburgh, or those shipped to and from said port upon vessels plying upon said river; that she was moored to the bank of saId river by such cables and fastenings as are used upon steam-boats for said purposes, and ";vas undergoing the necessary repairs and alterations to fit her for the uses intended; that there was moored to and fastened by her side a barge loaded with coal, which caught fire, and which fire communicated to the Natchez. Libellant, diseovering the fire, went to the rescue, awoke the watchman on the Natchez, and with the aid of another, who came to their assistance, cut loose the burning barge, sent her adrift, and extinguished the fire on the boat. In this service they eonsiderable heat and smoke, and some personal hazard, and libellant now propounds his claim for compensation as a salvor. The owners of the boat deny that she is liable to any salvage charge whatever.

To entitle a salvor to compensation the article saved and upon which the charge is made must, at the time the services are performed, be upon 01' washed from the sea, or some navigable stream, and must be something used in navigating the stream 01' sea, or as

'IRE OLD NATCHEZ.

477

an srUde of commerce transporteJ upon the sea or navigable stream, which includes all descriptions of water-craft used, or intended to be used, in conveying persons or property on or across such navigable stream, and the cargo transported thereon, or some article of com· merce transported by being itself floated thereon. The liability dependsupon the use then being made, or intended to be mado, of the vessel Or other article, and not upon the mere fact that it is at the time afloat. In the case of Tlw Hendrick lIudson, 3 Ben. 419, the boat, like the one in this case, had been used as other steamboats, but had been dismantled and used as a hotel and saloon at different places upon the Hudson riyer, and while being removed from one place to another it was necessary to have her pumped out to keep her afloat and enable her to reach the point where she was to he again stationed to be used for the same purpose. A claim was made for this service, and rejected for want of jurisdiction in the court; Judge Blatchford holding that to entitle a party to salvage compensation in admiralty the vessel or other thing must be in some way engaged in navigation or. commerce, or must .be so intended, although it may then be floating upon a navigable stream. This, lam satisfied, is the correct doctrine, and brings us to the question as to whether or not the Natchez was, at the time the service was performed, intended to be used in aid of navigation or commerce.. Wharf-boats are buoyant upon the water, and fastened to the bank of the stream in such a manner as to form a communication between the land and the vessels loading or unloading, or receiving and landing passengers and freight, and are so constructed as to be capable- of being removed from place to place so as to enable the vessels to land and receive their cargoes at any stage of the water, and in these respects are lmportant aids to commerce and navigation, much more so than any kind of stationary wharf, and especially so upon the Mississippi river, whose banks are so changeable. Therefore, being floated upon the water and movable, and being in aid of commerce and navigation, I can see no reason why this kind of water-craft should not be liable to a charge for salvage. It is not necessary that the vessel or other thing should be at the time so employed. If she was intended for such use it is sufficient, as held in the case of The Cheeseman v. Two Ferry-boats, 2 Bond, 363. I am satisfied that libellant is entitled to salvage compensation for his labors and risk in saving the property seized, but it is difficult, under the pleadings and agreed facts, to say how much. There is

4:78

FEDERAL REPORTER.

no definite rule. It may be by a ratable portion of the value of the property saved, or it may be a sum in gross. The value of the property at the time is not fixed by the agreement. It is agreed that the boat cost $4,000 and the repairs $2,000; that she was insured for $5,000; and that recently, in negotiations for her purchase, claimants held her at $12,000; but what changes had heen made in the value does not appear, or whether the boat was in fact worth that sam is not stated. It is agreed that the costs and repairs up to that time amounted to $6,000, and it is the value at that time and not subsequently that must be· taken as a basis, if value is considered. It seems to me that, whether the amount be considered in gross or ratably according to value, $500 is .a fair compensation to libellant f01 his services. The service was not long, nor is it claimed that there was much hazard. Libellant was the discoverer of the fire and mainly instrumental in the rescue. He is therefore entitled to a greater compensation than Stricker, who came to his aid. The watchman, whose dereliction of duty caused the danger, can claim nothing. Libellant will be allowed the sum of $500 and full costs, for which let a decree be entered.
Sec same case on appeal, infra.

In Admiralty. On appeal. PARDEE, C. J. In the summer of 1879 the steam-boat Natchez was taken to Cincinnati, Ohio, and dismantled, and stripped of her boilers, engines, and paddle-wheels. Her cabin was stripped of its furniture, her smoke-stacks were taken down, and everything that could be made available in the construction of a new steam-boat was taken off. There remained of the old no at the hull, the cabin, the texas, the hog-chains, running from stem to stern, the fore and aft capstans, the starir steps ,leading from the lower to the boiler decks, her boiler deck, and hurricane roof. She was without motive power of any'kind, and remained moored at Cincinnati until the fall of 1880, when she was purchased by the Vicksburgh Wharf & Land Company, and then towed to Vicksburgh, in this state, and moored to a landing